General counsel must partner with IT to manage discovery risks in the cloud

Like a fluffy cumulous cotton ball floating in the sky, “the cloud” – as in the computing term – hovers over all of us. Companies in every industry are leveraging the power of cloud computing and storage to cut costs and drive efficiency.

General counsel have found a number of uses for the cloud in relation to e-discovery, including using it to run e-discovery tools, using it to host content for review and doing discovery against cloud repositories. As such, the cloud offers a number of advantages, including:

Consolidation with local drives,

Alignment of records retention with policy and practice

Ease of deletion,

Enhanced search

Better protection against spoliation

Shared access for interview and identification

The ability to reduce or eliminate collection costs

But with these advantages come a number of challenges and questions as well. GC might be asking themselves about preservation, repatriation, cross-border issues with foreign-hosted data, bandwidth and issues of possession, custody and control.

Taking these questions into account demonstrates that these issues are not solely the concern of the IT department. In fact, a recent decision, Sekisui Am. Corp. v. Hart, the court declined to issue an adverse inference even though the plaintiff deleted “the entire active email folder of an important witness—perhaps the key witness—at a time when [plaintiff] obviously knew that it might commence a lawsuit.”

This illustrates the need for a clear cloud EDD strategy. GC should consider how to search and collect with online tools, whether or not to repatriate data to a vendor, if the cloud is a primary repository and who will have access to the cloud.